State v. Klem

• Decision Date: 22 March 1989
• Docket Number: Cr. N
• Citation: 438 N.W.2d 798
• Parties: 17 Media L. Rep. 1241 The STATE of North Dakota, Plaintiff and Appellee, v. Ernest KLEM, Defendant and Appellant. o. 880148.
• Court: North Dakota Supreme Court

Page 798

438 N.W.2d 798

17 Media L. Rep. 1241

The STATE of North Dakota, Plaintiff and Appellee, v. Ernest KLEM, Defendant and Appellant.

Cr. No. 880148.

Supreme Court of North Dakota.

March 22, 1989.

Jay Brovold, State's Atty., Medora, and Richard R. Tessier, Asst. Atty. Gen., Atty. General's Office, Bismarck, for plaintiff and appellee; argued by Jay Brovold. Appearance by Richard R. Tessier.

Thomas M. Tuntland (argued), Mandan, for defendant and appellant.

LEVINE, Justice.

Ernest Klem (Klem) appeals from a jury verdict finding him guilty of two counts ¹ of gross sexual imposition in violation of Sec. 12.1-20-03, N.D.C.C., from the judgment of conviction, and from an order denying his motion for a new trial. We reverse and remand for a new trial.

The victim of the offenses was Klem's adopted son. A general recitation of facts is unnecessary. Of several issues Klem has raised on appeal, we need consider only one:

"DID THE TRIAL COURT ERR WHEN IT EXCLUDED THE PUBLIC FROM THE COURTROOM DURING THE TESTIMONY OF THE ALLEGED VICTIM OF A SEXUAL CRIME WITHOUT MAKING ANY FINDINGS ADEQUATE TO SUPPORT CLOSURE AND WITHOUT ANY EVIDENCE TO SUPPORT CLOSURE HAVING BEEN ADVANCED?"

Just before the child victim testified, the State asked that the courtroom be cleared. The following colloquy occurred between the court and counsel at the bench:

"MR. TESSIER: Because this is of a sensitive nature may I ask that the Courtroom be cleared of all extraneous personnel? It may be very distracting and very embarrassing for him in front of all these people and the people in the Courtroom may inhibit the testimony.

"THE COURT: Any objections?

"[Klem's attorney]: ² As the Court has stated, it's my client's case and I would like to discuss that with him.

"THE COURT: Please do.

"[Klem's attorney]: Excuse me, Your Honor. I'm sorry, he does object. I don't have any grounds to object however.

"THE COURT: Very well. I think I will clear the Courtroom. Let's go back and put it on the record."

The court then cleared the courtroom of all persons except court personnel, parties, attorneys, jurors, and a "representative of the public media."

Klem contends that the trial court's exclusion of the public during the child's testimony deprived him of his right to a public trial under the sixth amendment to the United States Constitution and Art. I, Sec. 12, N.D. Const. The State contends that Klem did not preserve this issue for review, arguing that his " 'objection' to the partial closure of the Courtroom was not a proper valid objection" because "for there to be a valid objection giving rise to error, there must be grounds asserted therefor." (See Explanatory Note, Rule 51, N.D.R.Crim.P.). We conclude that any articulated objection for the purpose of resisting an untimely, unsupported motion to close a trial to the public fulfills the evidentiary rule that the State argues is applicable. We also conclude that Klem was improperly deprived of his right to a public trial.

Historically, we have exhibited a strong preference for public trials and our state and federal constitutions presume open trials as the norm. See, e.g., Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); Minot Daily News v. Holum, 380 N.W.2d 347 (N.D.1986); Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72 (N.D.1983). The public-trial guarantee was created for the benefit of the accused. Waller v. Georgia, supra; State v. Nyhus, 19 N.D. 326, 124 N.W. 71 (1909). A public trial restrains possible abuses of judicial power, encourages participants to perform their duties conscientiously, brings forth witnesses who might be unknown to the parties and might not otherwise testify, and tends to assure testimonial trustworthiness. Douglas v. Wainwright, 739 F.2d 531 (11th Cir.1984); 3 W. LaFave & J. Israel, Criminal Procedure Sec. 23.1(a) (1984). While the right to a public trial is not absolute and "may give way in certain cases to other rights or interests ... [s]uch circumstances will be rare, however, and the balance of interests must be struck with special care." Waller v. Georgia, supra, 467 U.S. at 45, 104 S.Ct. at 2215, 81 L.Ed.2d at 38. Thus, a party moving to close a criminal proceeding must advance an overriding interest that is likely to be prejudiced. Waller v. Georgia, supra.

A movant must make a prima facie showing that he is entitled to the relief his motion seeks. See Northwestern Equipment, Inc. v. Badinger, 403 N.W.2d 8 (N.D.1987). In Badinger a movant for summary judgment did not make a threshold showing that it was entitled to judgment as a matter of law, with the result that the opponent was not required to respond to the motion with affidavits. Similarly, the burden is on a movant for closure of a trial to the public to make a threshold showing that there is an overriding interest that can be protected only by closure. The weight of that burden is substantial. Douglas v. Wainwright, 714 F.2d 1532, 1539 (11th Cir.1983), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985) ("one who seeks to justify closure of a criminal trial carries a heavy burden"). The "bare assertions of counsel" (Minot Daily News v. Holum, supra, 380 N.W.2d at 350) are insufficient to constitute a threshold showing justifying closure.

Further, a motion to close a trial to the public must ordinarily be made before trial. See Rule 17.1, N.D.R.Crim.P. The reason is obvious--to avoid unfair surprise and to give the trial court the benefit of the parties' research and arguments.

In this case, the State did not make a pretrial motion. It framed its midtrial motion in only the most general terms and it failed to provide the trial court with specific facts sufficient to justify closure. Without warning, and as the child was seated in the witness stand ready to testify, the State requested closure of the trial during the child's testimony. The impact of this last-minute "motion" was significant. This was the second trial. ³ The entire first trial was open to the public. Therefore, the surprise to the defendant from the State's untimely and unsupported motion to close the trial cannot be overestimated.

Under these circumstances, namely, an untimely, unsupported motion to close, we hold that Klem was not required to respond with any greater specificity than he did, and that his objection was sufficient to register his resistance to the motion.

In Waller v. Georgia, supra, the United States Supreme Court concluded that a defendant's express sixth amendment right to a public trial enjoys at least equal footing with the implied first amendment right of the press and public. Sensitive to the fact that Waller involved closure of only a suppression hearing and not a trial, the Waller court reasoned that, because suppression hearings "often are as important as the trial itself," they too must be open unless the tests for closure set out in Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), and its predecessors are met. Waller, supra, 467 U.S. at 46, 104 S.Ct. at 2215, 81 L.Ed.2d at 39. The applicable rules in Press-Enterprise are:

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." 464 U.S. at 510, 104 S.Ct. at 824, 78 L.Ed.2d at 638.

There is thus an absolute requirement that before the trial court may exclude the public, it must articulate its reasons on the record and those reasons must be expressed in findings that enable a reviewing court to exercise its function. The court summarized the requirements in Waller, supra, 467 U.S. at 48, 104 S.Ct. at 2216, 81 L.Ed.2d at 39:

"[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure."

The requirement of findings by the trial court is not merely to give the reviewing court something to review, but more importantly, to evidence that the trial court has in fact considered and weighed the competing interest of an accused to a public trial with the interest of a child sexual abuse victim to a stress-controlled environment. A hearing and findings encourage the careful consideration warranted by a motion to close a trial.

In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the United States Supreme Court invalidated a state statute requiring exclusion of press and public during the testimony of minor sexual abuse victims. Globe recognizes a compelling interest in safeguarding the physical and psychological well-being of minor victims of sex crimes and does not prohibit closure. However, Globe does require that a trial court make a particularized determination that a child witness is in need of protection before closing a trial to protect the child. This the trial court did not do. There was no hearing, no weighing of competing interests, and no findings to support closure. While the trial court's allowance of the presence of a media representative may have satisfied the public's first amendment right, it did not address the defendant's sixth amendment right to a public trial.

Where a defendant has objected to the exclusion of the public, compliance with the closure requirements enunciated in Waller v. Georgia, supra, is necessary and noncompliance is reversible error. See, e.g., State v....